A Texas hearing officer has concluded that Frisco ISD served a student appropriately, even when the district proposed moving the student to a more restrictive environment. The case is a good illustration of how Tool #3 works in practice.

Tool #3 is a part of our firm’s all day Toolbox Training on how to work effectively with students with disabilities who have challenging behaviors.  Tool #3 (there are ten) is an Educational Change of Placement Without Parent Consent. 

We call it an “educational” change of placement to distinguish this situation from a disciplinary change of placement. When students engage in disruptive behavior that is not a manifestation of disability, a disciplinary change of placement may be called for. That’s Tool #6.  But when the behavior is a manifestation of disability, it’s not proper to use disciplinary tactics.  Instead, the law requires the application of the “two don’ts.”  Don’t punish the behavior; but don’t ignore it either. 

If parents are in agreement with the school’s proposed change of placement everything goes smoothly.  But since the proposed change is often to a more, rather than less, restrictive setting, parental opposition is common.  That’s what happened here.   The school proposed moving this student to a self-contained unit where behavior and emotional control would be the primary focus.  The student had been in the general education setting, so this was definitely a move to a more restrictive setting.   The parents objected and, in fact, pulled the student out of public school and sought reimbursement for the private school tuition they were paying. 

They didn’t get it. The hearing officer held that the district had offered FAPE and that the proposed move to the self-contained unit was timely:

While this setting is more restrictive than the general educational setting, it was necessary for Student due to Student’s behaviors.  It is not appropriate to educate a student in the general education setting when the student engages in disruptive behavior that significantly impairs the education of other students in the general education setting.

 And note this: the move was not intended to be permanent. The district’s goal was to get this student back to his general education setting:

The School District’s goal…was to help Student learn how to handle Student’s emotions when Student was frustrated and teach coping skills in a more controlled environment with the goal of returning to the general education setting.

The hearing officer held that Frisco passed all four parts of the FAPE test that Texas courtuse. 

*First, the IEP was individualized, based on multiple assessments and input from both teachers and parents.

*Second, it was implemented in the least restrictive environment.  Even the move to the self-contained unit satisfied this test because it was the LRE for this student at this time. 

*Third, there was ample evidence of good communication and collaboration between school and parents.  *The only close call was on the fourth factor—did the student make progress?  Academically he did.  He made A’s in all classes and was achieving above grade level.  But by all accounts the

student’s behavior deteriorated toward the end of his time in the district. In response, the school called for revisions to the BIP and a move to the self-contained unit.  The parents argued that this was, in effect, an admission of a denial of a FAPE.  Nope: 

A school district is allowed to change a Student’s program without it being a denial of FAPE.  Otherwise, the result would be any suggested change in a Student’s program would be an automatic admission of denying FAPE to a student.

Kudos to the staff at Frisco ISD for serving this student appropriately.  And hats off to my partner, Nona Matthews, from our firm’s Irving office, who handled this case. The case is Frisco ISD, decided by the special education hearing officer Kasey White on August 23, 2019. It’s posted on Special Ed Connection at 119 LRP 42539, and also at the T.E.A. website as Docket No. 180-SE-0219.

DAWG BONE: USE TOOL #3 RARELY, CAREFULLY, AFTER LEGAL REVIEW.

Tomorrow: Have you heard of the McCarthy Era?